Wednesday, July 13, 2011

When Married for Life Means ... Married FOR LIFE

On July 24, 2011, New York will become the sixth state in the country to allow same-sex couples to wed. Given that New York already is a popular destination for people from all over the United States and the world, it is not hard to imagine same-sex couples streaming into New York from places near and far to exchange their vows of marriage.

The beginning of same-sex nuptials in New York is historic, and is cause for celebration -- for what it says about social acceptance and equality, as much as for the actual ability of same-sex couples to marry.

But as a family law attorney, and someone who is involved in family policy work on a national level, I am worried about couples getting caught up in the excitement of the moment, and flying off to New York to marry without truly thinking through the legal consequences of that choice.

A quick lesson about jurisdiction: Before you can go into the courts of any state to ask for relief of any kind, those courts have to have jurisdiction -- "subject matter" jurisdiction over the issue that brings you before the court, plus "personal" jurisdiction over the parties.

Getting married does not require any type of court action. It is a clerical act. So the courts of a state do not need to have jurisdiction for a couple to get married in that state. A different-sex couple can get married in any of the 50 states, regardless of where they live; and a same-sex couple can get married in any of the 6 states that now allow same-sex couples to marry, regardless of where they live.

But divorce requires court action. So the courts must have jurisdiction before they can adjudicate a divorce.

This means that a same-sex couple from, say, Indiana, can travel to any of the six states that now allow same-sex couples to marry, and can get married there without any problem. But then that couple presumably will return to Indiana. And Indiana does not recognize same-sex marriages. Which means that if that couple later needs a divorce, there is a strong chance that the Indiana courts will not be willing to divorce them (because the courts of many states are refusing to recognize same-sex marriages, even for purposes of divorce). And the courts of the state where they married will not have jurisdiction unless at least one of the spouses establishes residency in that state; for example, the New York courts will not have jurisdiction to divorce a couple married in New York unless at least one of the parties has actually lived in New York for a minimum of one year.

So while we all are celebrating the spread of equality around the country, it is important to remember that marriage is, fundamentally, a deeply personal and legal commitment to a long term relationship with an intimate partner. It is a commitment that is meant to be "for life" -- and in the case of same-sex couples traveling outside their home state to marry, it may truly be FOR LIFE.

So mazel tov to all the happy couples exchanging marriage vows in New York next weekend. But please don't get married just because you can. Remember that marriage is a legal commitment that it is hard to get out of, and make sure it is the right choice for you and your beloved before you take the leap.